Opinion
No. CV 11-6016675
November 15, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion #103.00)
FACTS
On September 8, 2009, the trial court, Arnold, J., granted summary judgment in connection with the plaintiff's original action, Steedley v. Pratt, Superior Court, judicial district of Fairfield, Docket No. CV 01 0384844 (September 8, 2009, Arnold, J.) ( Steedley I). On February 22, 2011, the plaintiff, Regina Steedley, commenced a two-count action ( Steedley II) against the defendant, Metropolitan Property Casualty Insurance Company. In count one of the amended complaint in Steedley II, the plaintiff alleges that the defendant intentionally refused to pay uninsured and/or underinsured benefits. In count two, the plaintiff alleges a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., based on unfair insurance practices in violation of the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a-815 et seq.
The court takes judicial notice of the procedural history in Steedley I. See Ertel v. Rocque, 108 Conn.App. 48, 53 n. 4, 946 A.2d 1251, cert. denied, 289 Conn. 926, 958 A.2d 158 (2008) ("[t]he trial court has the power to take judicial notice of court files of other actions between the same parties" [internal quotation marks omitted]).
A review of the court file in Steedley I reveals the following procedural history. The plaintiff filed a two-count action on July 24, 2001 against Roland Pratt and Geraldine Pratt, for negligently and recklessly causing a motor vehicle accident on July 19, 1999. The plaintiff alleged that Roland Pratt was driving a motor vehicle owned by Geraldine Pratt. At the time of the accident, the plaintiff was insured by the defendant and the Pratts were insured by Reliance National Indemnity Insurance Company (Reliance).
Subsequently, Reliance and its related entities were placed into liquidation by the state of Pennsylvania. On October 8, 2001, a notice of stay and liquidation was filed with the state of Connecticut, judicial district of Fairfield. On October 13, 2003, the Pratts filed their answer and special defense, alleging that the plaintiff's action was stayed until the plaintiff proved the absence of another source of benefits. About thirty months later, on April 25, 2006, the plaintiff's attorney mailed a letter to the defendant demanding a settlement for uninsured benefits. On May 6, 2006, the defendant denied the plaintiff's settlement demands "pursuant to the provisions of [General Statutes § ]38a-336." On June 1, 2007, a dormancy dismissal entered pursuant to Practice Book § 14-3.
Practice Book § 14-3 provides in relevant part: "If a party shall fail to prosecute an action with reasonable diligence, the judicial authority may, after hearing, on motion by any party to the action . . . or on its own motion, render a judgment dismissing the action with costs."
On September 4, 2007, the plaintiff filed a motion to open the judgment, which was granted on September 19, 2007. Subsequently, on November 29, 2007, the plaintiff moved to implead the defendant, which was granted by the court. In her one-count "intervening complaint," the plaintiff made an uninsured/underinsured motorist coverage claim against the defendant. On December 19, 2008, the defendant filed a request to revise the intervening complaint on the ground that the alternative theories of recovery, uninsured coverage and underinsured coverage, should be separated out into different counts. On January 25, 2009, the plaintiff filed a one-count "revised intervening complaint." Neither the intervening complaint nor the revised intervening contained a CUTPA/CUIPA claim.
The only difference between these two complaints was a change in paragraph seventeen. In the revised intervening complaint, paragraph seventeen included for the first time the following introductory clause: "If the insurance carrier insuring that vehicle being operated by [Roland Pratt] is insolvent" and added the words "under the policy of insurance issued to the plaintiff" following "the [plaintiff]."
On February 6, 2009, the defendant filed a motion for summary judgment on the ground that the plaintiff's claim was barred pursuant to the three-year statute of limitations in General Statutes § 38a-336(g)(1), and was not saved by the tolling provision in General Statutes § 38a-336(g)(2). On February 10, 2009, the defendant filed a motion for judgment of nonsuit, stating that the plaintiff "ignored the [defendant's] [r]equest to [r]evise and filed the same complaint." Furthermore, the defendant contended that its request was automatically granted pursuant to Practice Book § 10-37, as the plaintiff failed to file an objection within thirty days. On February 13, 2009, the plaintiff filed a six-count "revised complaint." Although the "revised complaint" added five new counts, the plaintiff did not file a request for leave to amend pursuant to Practice Book § 10-60.,
Section 38a-336(g)(1) provides in relevant part: "No insurance company . . . may limit the time within which any suit may be brought against it . . . on the uninsured or underinsured motorist provisions of an automobile liability insurance policy to a period of less than three years from the date of accident, provided, in the case of an underinsured motorist claim the insured may toll any applicable limitation period (A) by notifying such insurer prior to the expiration of the applicable limitation period, in writing, of any claim which the insured may have for underinsured motorist benefits and (B) by commencing suit . . . under the terms of the policy not more than one hundred eighty days from the date of exhaustion of the limits of liability under all automobile bodily injury liability bonds or automobile insurance policies applicable at the time of the accident by settlements or final judgments after any appeals."
Section 38a-336(g)(2) provides in relevant part: "[I]n the case of an uninsured motorist claim, if the motor vehicle of a tortfeasor is an uninsured motor vehicle because the automobile liability insurance company of such tortfeasor becomes insolvent or denies coverage, no insurance company . . . may limit the time within which any suit may be brought against it . . . on the uninsured motorist provisions of an automobile liability insurance policy to a period of less than one year from the date of receipt by the insured of written notice of such insolvency of, or denial of coverage by, such automobile liability insurance company."
Section 10-37 provides in relevant part: "[A] request [to revise] shall be deemed to have been automatically granted by the judicial authority on the date of filing and shall be complied with by the party to whom it is directed within thirty days of the date of filing the same, unless within thirty days of such filing the party to whom it is directed shall file objection thereto."
Section 10-60 provides in relevant part: "[A] party may amend his or her pleadings or other parts of the record or proceedings . . . in the following manner: (1) By order of judicial authority; or (2) By written consent of the adverse party; or (3) By filing a request for leave to file such amendment, with the amendment appended, after service upon each party . . . and with proof of service endorsed thereon."
The revised complaint was referenced in the clerk's office as an "amended complaint," and accordingly, it will be referred to throughout this decision as an amended complaint.
Counts one and two of the amended complaint included allegations against the Pratts for negligence and recklessness, respectively. In count three, the plaintiff alleged that the Pratt vehicle was an underinsured highway vehicle because of the insolvency of Reliance, and therefore, the plaintiff was entitled to underinsured benefits from the defendant. At the same time, the plaintiff alleged in count five that the Pratt vehicle was an uninsured highway vehicle because of the insolvency of Reliance, and thus, the plaintiff was entitled to uninsured benefits from the defendant. In counts four and six, the plaintiff alleged, for the first time, violations of CUTPA and CUIPA as a result of the defendant's denial of uninsured/underinsured benefits.
On February 23, 2009, the defendant filed a request to revise, requesting, inter alia, that the plaintiff delete the alleged violations of CUTPA and CUIPA from the amended complaint. The defendant argued that the amended complaint was untimely, as the case was scheduled for trial in May 2009, the defendant had already filed a motion for summary judgment, and the matter was pending for over a year. On February 27, 2009, the plaintiff objected to the defendant's request to revise, arguing, inter alia, that a motion to strike is required to delete counts four and six. On March 11, 2009, the trial court, Gilardi, J., entered an order that "denied" the plaintiff's amended complaint. On September 8, 2009, the trial court, Arnold, J., granted the defendant's motion for summary judgment on the ground that the action was time barred pursuant to the express terms of the insurance contract and §§ 38a-336(g)(1) and (g)(2). On November 3, 2009, the plaintiff appealed the court's decision granting the defendant's motion for summary judgment. In her appeal, the plaintiff argued, inter alia, that it is procedurally improper to deny an amended complaint in response to an opposing party's request to revise. The Appellate Court, however, affirmed the court's decision, per curiam, on January 4, 2010. Steedley v. Pratt, 125 Conn.App. 907, 10 A.3d 1114 (2011). The Supreme Court denied certification to appeal on February 10, 2011. Steedley v. Pratt, 300 Conn. 911, 12 A.3d 1006 (2011).
The plaintiff commenced the present action, Steedley II, on February 22, 2011. On May 5, 2011, the defendant filed a motion for summary judgment on the ground that the doctrine of res judicata bars the present action, and, in support of its motion, submitted documents illustrating the procedural history of Steedley I. On June 21, 2011, the plaintiff submitted a memorandum in opposition to the defendant's motion. On July 25, 2011, the defendant filed a reply memorandum. This matter was heard at short calendar on August 1, 2011.
DISCUSSION
"Summary judgment is the appropriate method for resolving a claim of res judicata." Sotavento Corp. v. Coastal Pallet Corp., 102 Conn.App. 828, 833, 927 A.2d 351 (2007). "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Unifund CCR Partners v. Schaeppi, 126 Conn.App. 370, 379-80, 11 A.3d 723 (2011). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Internal quotation marks omitted.) Taylor v. Lantz, 129 Conn.App. 437, 442, 20 A.3d 88 (2011). "[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Jackson v. Tohan, 113 Conn.App. 782, 786, 967 A.2d 634, cert. denied, 292 Conn. 908, 973 A.2d 104 (2009).
The defendant moves for summary judgment on the ground that Steedley II is barred by the doctrine of res judicata. Specifically, the defendant argues that count one alleges a claim for uninsured/underinsured motorist benefits that "is the very same claim made in Steedley I, a claim that the trial court held was barred by the statute of limitations." The defendant further contends that the plaintiff's "CUIPA through CUTPA claim" in count two arises out of the defendant's refusal to pay in accordance with the terms of the policy, and therefore, the claim involves the same set of facts as Steedley I. Lastly, the defendant asserts that even though the plaintiff did not directly include claims of bad faith and violations of CUTPA/CUIPA, these claims could have been asserted in Steedley I.
The plaintiff counters that the defendant misreads Steedley II, as count one does not set forth a claim for uninsured/underinsured benefits. The plaintiff further asserts that the amended complaint in Steedley I was the only attempt to raise a bad faith claim against the defendant, and it was not allowed by the trial court, Gilardi, J. The plaintiff argues that the doctrine of res judicata does not bar counts one and two, as "the plaintiff will not relitigate a matter which it already has had an opportunity to litigate . . . but will be litigating a matter it was previously prevented from litigating."
In its reply memorandum, the defendant argues that "[t]he plaintiff now seeks to assert the nonsensical jurisprudential theory that res judicata applies to claims of bad faith not made in the underlying action," "but not to claims expressly made but rejected in the underlying action." Moreover, the defendant contends that the plaintiff improperly attempts to collaterally attack the court's denial of the amended complaint in Steedley I. Thus, the defendant maintains that Steedley II is barred by the doctrine of res judicata and requests that the court grant its motion for summary judgment.
I
As a threshold issue, the court notes that the defendant in the present case did not specially plead its res judicata defense. "[The court is] cognizant of the general rule that res judicata must be specially pleaded . . . This general rule, however, yields when . . . the circumstances reveal that [a failure to consider an issue] would simply set judicial wheels unnecessarily spinning, only to remain at the same end of the road." (Citation omitted; internal quotation marks omitted.) State v. Osuch, 124 Conn.App. 572, 582-83, 5 A.3d 976, cert. denied, 299 Conn. 918, 10 A.3d 1052 (2010). Moreover, "[t]he [defendant's] failure to file a special defense may be treated as waived where the plaintiff fails to make [an] appropriate objection to the evidence and argument offered in support of that defense." Singhaviroj v. Board of Education, 124 Conn.App. 228, 234, 4 A.3d 851 (2010). Here, the plaintiff does not object to the defendant's summary judgment motion on the ground that the defendant fails to properly plead res judicata. To the contrary, the plaintiff argues the merits of the claim preclusion defense in her opposition to the motion for summary judgment. "Thus, despite the [defendant's] failure to specially plead [that defense], the court [may] properly . . . consider [it] in deciding the [motion] for summary judgment." Singhaviroj v. Board of Education, supra, 234.
II
"The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction . . . If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made . . . Res judicata bars not only subsequent relitigation of a claim previously asserted, but subsequent relitigation of any claims relating to the same cause of action . . . which might have been made." (Citation omitted; internal quotation marks omitted.) Massey v. Branford, 119 Conn.App. 453, 464-65, 988 A.2d 370, cert. denied, 295 Conn. 921, 991 A.2d 565 (2010). "The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it." (Internal quotation marks omitted.) Strategic BCICFC Acquisitions, LLC v. Constitution Holding, LLC, Superior Court, judicial district of New Haven, Docket No. 05 4015275 (October 8, 2008, Bellis, J.), citing Sotavento Corp. v. Coastal Pallet Corp., supra, 102 Conn.App. 834.
"[T]he appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding . . ." (Internal quotation marks omitted.) State v. Osuch, supra, 124 Conn.App. 581. "The essential concept of the modern rule of claim preclusion is that a judgment against [the] plaintiff is preclusive not simply when it is on the merits but when the procedure in the first action afforded [the] plaintiff a fair opportunity to get to the merits." (Internal quotation marks omitted.) Close, Jensen Miller, P.C. v. Fidelity National Title Ins. Co., 130 Conn.App. 174, 183, 21 A.3d 952 (2011). While "[a] plaintiff [abandons] his opportunities to avoid res judicata [by failing to take an appeal]"; Tirozzi v. Shelby Ins. Co., 50 Conn.App. 680, 689, 719 A.2d 62, cert. denied, 247 Conn. 945, 723 A.2d 323 (1998); res judicata may also apply even if the unsuccessful party in the prior litigation did not have the opportunity to seek appellate review. Weiss v. Weiss, 297 Conn. 446, 472 n. 20, 998 A.2d 766 (2010).
"Because . . . res judicata . . . [is a] judicially created [rule] of reason that [is] enforced on public policy grounds . . . [our Appellate Court has] observed that [the decision] whether to apply [the] doctrine in any particular case should be made based upon a consideration of the doctrine's underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close . . . and the competing interest of the plaintiff in the vindication of a just claim . . . These [underlying] purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation." (Citation omitted; internal quotation marks omitted.) Close, Jensen Miller, P.C. v. Fidelity National Title Ins. Co., 130 Conn.App. 174, 181, 21 A.3d 952 (2011).
"Although the denial of a motion to amend is not a final appealable judgment, it can be raised in an appeal from a subsequent final judgment on the underlying complaint." Tarzia v. Great Atlantic Pacific Tea Co., 52 Conn.App. 136, 141 n. 5, 727 A.2d 219 (1999).
"[Our appellate courts] have adopted a transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata. [T]he claim [that is] extinguished [by the judgment in the first action] includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. What factual grouping constitutes a transaction, and what groupings constitute a series, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage . . . In applying the transactional test, [our appellate courts] compare the complaint in the second action with the pleadings and the judgment in the earlier action." (Internal quotation marks omitted.) Nipmuc Properties, LLC v. Meriden, 130 Conn.App. 806, 812-13, 25 A.3d 714 (2011); see also Weiss v. Weiss, supra, 297 Conn. 462 (when deciding a claim of res judicata "the scope of matters precluded [in the subsequent action] necessarily depends on what has occurred in the former adjudication . . . [The court] . . . [compares] the complaint in the present action with the pleadings and judgment in the [previous action]" [internal quotation marks omitted]).
In Powell v. Infinity Ins. Co., 282 Conn. 594, 922 A.2d 1073 (2007), the plaintiffs appealed the trial court's grant of summary judgment in favor of the defendant based on the doctrine of res judicata. In their initial action (action I), the plaintiffs alleged that they were involved in a motor vehicle accident after an unknown vehicle veered into their lane of travel thereby causing the plaintiffs to strike multiple vehicles. The plaintiffs filed claims under an uninsured policy issued by the defendant and the case went to verdict. About one year later, the plaintiffs commenced a second action (action II) alleging bad faith, breach of contract and a violation of CUTPA through CUIPA.
On appeal, our Supreme Court held that action I and action II "both . . . allege a breach of contract, involve the same parties, arise from the same motor vehicle accident, claim uninsured motorist benefits under the same policy . . . and turn essentially on the defendant's refusal to pay in accordance with the terms of that uninsured motorist policy." Id., 605. Moreover, the court held that "the bad faith and CUTPA/CUIPA counts in action II also arise out of the defendant's refusal to pay the policy benefits despite its contractual obligations . . . [The plaintiffs'] claims turn on essentially one event — the defendant's refusal to pay in accordance with the terms of . . . [the] policy." Id., 606. Therefore, the court held that "the trial court properly applied the transactional test to conclude that the claims in action II could have been made in action I and are, therefore, barred by res judicata." Id.
A
In the present case, the court must first determine whether count one in Steedley II actually alleges a bad faith claim, as argued by the plaintiff. "In order to make . . . a [bad faith] claim . . . the plaintiff must allege that the defendant did more than simply deny the plaintiff's claim for benefits." (Internal quotation marks omitted.) Jello-Pitkin v. GEICO Indemnity Co., Superior Court, judicial district of New London, Docket No. CV 09 5012395 (August 16, 2011, Cosgrove, J.) [ 52 Conn. L. Rptr. 453]; Bernard v. Buendia, Superior Court, judicial district of Fairfield, Docket No. CV 04 4003054 (July 20, 2005, Doherty, J.). "Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive . . . Bad faith means more than mere negligence . . . [B]ad faith may be overt or may consist of inaction, and it may include evasion of the spirit of the bargain . . ." (Internal quotation marks omitted.) Brennan Associates v. OBGYN Specialty Group, P.C., 127 Conn.App. 746, 759-60, 15 A.3d 1094, cert. denied, 301 Conn. 917, 21 A.3d 463 (2011). "[A]n honest mistake, incorrect interpretation or mere difference in the parties' interpretations of a contract does not amount to bad faith conduct without an associated dishonest purpose." (Internal quotation marks omitted.) PIC Associates, LLC v. Greenwich Place GL Acquisition, LLC, 128 Conn.App. 151, 173, 17 A.3d 93 (2011).
Generally, "a party to a contract is entitled to take reasonable positions to protect its interests and to resist efforts that would compromise its legal rights." Elliott v. Staron, 46 Conn.Sup. 38, 48, 735 A.2d 902 (1997), aff'd, 51 Conn.App. 632, 736 A.2d 196 (1999).
In count one of Steedley II, the plaintiff alleges that "[d]espite having paid the defendant . . . for uninsured/underinsured coverage, the defendant [has] intentionally refused to pay benefits under the . . . coverage for which [the plaintiff] paid [the defendant] . . . As a result of the defendant's . . . intentional refusal, the [p]laintiff has suffered damages and losses and injuries." Count one, however, lacks any allegation of bad faith conduct by the defendant. The allegation that the defendant denied the plaintiff's demand for benefits does not, by itself, translate into an allegation that the defendant acted in bad faith. Therefore, it appears that the allegations of count one, give rise to a breach of contract claim for uninsured/underinsured benefits and not one of bad faith. See Powell v. Infinity Ins. Co., supra, 282 Conn. 605 n. 3 ("[a]lthough the plaintiffs label the first action as a claim for uninsured motorist benefits and not as one in contract, this is a distinction without a difference for our purposes").
See also Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 384, 698 A.2d 859 (1997) ("[a]n action to recover under an automobile insurance policy is not an action in tort but, rather, an action in contract. The obligation of [an] insurance carrier providing uninsured motorist coverage as a part of its liability insurance coverage on the automobile of the insured person is a contractual obligation arising under the policy of insurance" [emphasis in original; internal quotation marks omitted]).
Turning to the principles of claim preclusion, the court must determine whether res judicata bars the plaintiff's claim for uninsured/underinsured benefits in count one of Steedley II. In Steedley I, the plaintiff alleged that she "demands payment from [the defendant] . . . under the . . . [uninsured/underinsured] coverage . . . issued by the [d]efendant . . . The [p]laintiff . . . is entitled to the payment of [uninsured/underinsured] benefits for her damages, losses and injuries covered under the . . . insurance contract with [the defendant], which benefits have not been paid." As is evident, the allegations in Steedley II are substantively identical to the allegations within count one of Steedley I. Similar to Powell v. Infinity Ins. Co., supra, 282 Conn. 594, the allegations within Steedley I and count one of Steedley II involve the same parties, arise from the same motor vehicle accident, claim uninsured/underinsured benefits under the same insurance policy issued to the plaintiff and are based on the defendant's refusal to pay in accordance with the terms of the policy. Additionally, the plaintiff failed to appeal the trial court's summary judgment decision on the specific ground relied upon by the court, i.e., that the claim for uninsured/underinsured benefits was time barred. Consequently, the plaintiff cannot argue that she did not have an adequate opportunity to litigate her insured/underinsured claim in Steedley I. As a result, count one of Steedley II is barred by the doctrine of res judicata, as the allegations arise out of the same transaction as Steedley I.
B
Next, the court must determine whether res judicata applies to the plaintiffs CUTPA/CUIPA claim where the trial court's ruling prevented the plaintiff from adding these allegations in her amended complaint in Steedley I. There is no controlling case law on point in Connecticut as to whether res judicata bars a claim that a party sought to include within an amended complaint of a prior action against the same defendant, but which was subsequently denied by the trial court.
Our appellate courts have adopted sections of the Restatement (Second), Judgments, when applying the doctrine of res judicata. Lighthouse Landings, Inc. v. Connecticut Light Power Co., 300 Conn. 325, 348-49, 15 A.3d 601 (2011) (referring to §§ 24 and 25 of the Restatement (Second), Judgments, when discussing the principles of res judicata and the transactional test); Summitwood Development, LLC v. Roberts, 130 Conn.App. 792, 803-04, 25 A.3d 721 (2011) (same). Restatement (Second), Judgments § 25, comment (b) (1982) provides in relevant part: "It is immaterial that the plaintiff in the first action sought to prove the acts relied on in the second action and was not permitted to do so because they were not alleged in the complaint and an application to amend the complaint came too late." This rule has been adopted by other jurisdictions when deciding whether res judicata precludes a claim that was prohibited from being litigated in the prior action where leave to amend was denied. Northern Assurance Co. of America v. Square D Co., 201 F.3d 84, 87-88 (2d Cir. 2000); Huck v. Dawson, 106 F.3d 45, 50 (3d Cir. 1997); Integrated Technologies Ltd. v. Biochem Immunosystems, 2 F.Sup.2d 97, 102 (D.Mass. 1998).
In Northern Assurance Co. of America v. Square D Co., supra, 201 F.3d 84, the United States Court of Appeals for the Second Circuit held: "Where the plaintiff is seeking to add additional claims against the same defendant and leave to amend is denied [without reaching the merits of the claim], claim preclusion is appropriate. When claim preclusion is applied in these cases, it is not the actual decision to deny leave to amend that forms the basis of the bar . . . In fact, the actual decision denying leave to amend is irrelevant to the claim preclusion analysis . . . Instead, the bar is based on the requirement that the plaintiff must bring all claims at once against the same defendant relating to the same transaction or event . . . The claims will be barred through the normal rule barring claims that should have been brought, regardless of whether the plaintiff seeks to add them to the initial suit . . . Thus, the actual decision denying leave to amend is no more than a proxy to signify at what point claims have been forfeited due to a plaintiff's failure to pursue all claims against a particular defendant in one suit. The bar, however, turns on normal principles of claim preclusion, i.e., whether [the plaintiff] was required to bring its claims in the initial suit." (Citations omitted; internal quotation marks omitted.) Id., 88.
See also Integrated Technologies Ltd v. Biochem Immunosystems, supra, 2 F.Sup.2d 102-03 ("[i]f a claim is both transactionally related to one which is the subject of a pending lawsuit and was in existence at the time the first lawsuit was filed, then, for all the same policy reasons that underlie the doctrine of claim preclusion, it is incumbent on the plaintiff either to 1) include the second claim in the original complaint or 2) bring the second claim into the first action by a motion to amend filed early enough to be allowed without undue disruption of the existing case. Neither the defendant nor the judicial system should have to bear the considerable expense or inconvenience of plaintiff's failure to do so").
Based on the foregoing, the court follows the reasoning of Northern Assurance Co. of America v. Square D Co., and § 25, comment (b), of the Restatement (Second), Judgments. The court concludes that res judicata may bar the CUTPA/CUIPA claim in Steedley II even though the plaintiff sought to include these allegations within her amended complaint against the defendant in Steedley I, but was subsequently denied by the trial court.
Based on that premise, the fact that the plaintiff was unsuccessful with respect to the amended complaint does not mean that the plaintiff did not have an adequate opportunity in Steedley I to litigate her CUTPA/CUIPA claim. The plaintiff was required to bring all her claims at once against the defendant. The plaintiff, however, failed to bring her additional claims until approximately twenty-two months after commencing her suit against the defendant in Steedley I. When the plaintiff filed her amended complaint, the defendant had already filed a motion for summary judgment on the revised intervening complaint, and the matter was scheduled for trial in May 2009. The plaintiff does not argue and there is no evidence that the defendant's conduct involved in her CUTPA/CUIPA claim had not yet occurred when the plaintiff commenced Steedley I against the defendant. Additionally, the plaintiff did not file a request for leave to amend pursuant to § 10-60 when she attempted to add her CUTPA/CUIPA claim. While a decision "to allow an amendment to the pleadings rests within the discretion of [a] trial court"; (internal quotation marks omitted) Summitwood Development, LLC v. Roberts, supra, 130 Conn.App. 800; "[i]n the absence of a properly filed request to amend, the trial court [is] not called upon to exercise its discretion, and it correctly [declines], as a matter of law, to consider the purported amendment." Pekera v. Purpora, 273 Conn. 348, 357, 869 A.2d 1210 (2005). Therefore, the plaintiff was presented with "a fair opportunity to get to the merits"; (internal quotation marks omitted). Close, Jensen Miller, P.C. v. Fidelity National Title Ins. Co., supra, 130 Conn.App. 183; but failed to avail herself of the opportunity.
Turning to the transactional test, the CUTPA/CUIPA claim in Steedley II arises out of the same transaction or set of facts as the allegations in Steedley I. Specifically, the plaintiff alleges that the defendant "rejected and denied the [p]laintiff's claims . . . acted to further delay the [p]laintiff's recovery . . . acted to require the [p]laintiff to continue with litigation against the Pratts individually . . . [and] acted to frustrate the purpose of the [uninsured/underinsured] coverage for which it charged the plaintiff multiple premiums." Similar to Powell v. Infinity Ins. Co., supra, 282 Conn. 594, the plaintiff's CUTPA/CUIPA claim revolves on one event: the defendant's refusal to pay in accordance with the terms of the plaintiff's policy. While Steedley I did not include an express CUTPA/CUIPA claim, these allegations are extinguished, as they could have been alleged in Steedley I. As a result, the doctrine of res judicata bars count two in Steedley II.
CONCLUSION
Based on the foregoing, there is no genuine issue of material fact as to whether the doctrine of res judicata bars the allegations within Steedley II and the defendant is entitled to a judgment as a matter of law. Accordingly, the defendant's motion for summary judgment is granted as to both counts.